Kowalski v Cole - [2010] FMCA 792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOWALSKI v COLE & ORS

[2010] FMCA 792

TRADE PRACTICES – Summary dismissal of application.

Trade Practices Act 1974, ss.52, 53 & 6(3)(a)(b)
Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, r.13

Kowalski v Cole & Anor [2009] FMCA 1222
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant:

KAZIMIR KOWALSKI

First Respondent:

RUSSELL JOHN COLE

Second Respondent:

WILLIAM ANDREW SIM

Third Respondent:

R.J. COLE & PARTNERS

File Number:

ADG 99 of 2010

Judgment of:

Lindsay FM

Hearing date:

5 October 2010

Date of Last Submission:

5 October 2010

Delivered at:

Adelaide

Delivered on:

5 October 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr S. Thomas

Solicitors for the Respondents:

R J Cole & Partners

ORDERS

The application filed by the applicant on 4 May 2010 and amended on 12 July 2010 be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
Liberty to the respondents to bring any application for costs arising from this determination PROVIDED they do so within the next fourteen [14] days upon written request to the Associate to FM Lindsay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 99 of 2010

KAZIMIR KOWALSKI

Applicant

And

RUSSELL JOHN COLE

First Respondent

WILLIAM ANDREW SIM

Second Respondent

R.J. COLE & PARTNERS

Third Respondent

REASONS FOR JUDGMENT

Before me today is an application by the three respondents to Mr Kowalski’s amended application filed on 12 July 2010 to summarily dismiss that application. It is an application then that is made under the aegis of section 17A of the Federal Magistrates Act 1999, which section is really reflected in Rule 13 of the Federal Magistrates Court Rules 2001 and the application of the respondents is that this application has no reasonable prospect of success because the issues raised by the application have been determined in a series of earlier decisions of courts of the State jurisdiction.
I do not think there is any purpose served in me getting into an analysis of whether Anshun or res judicata, as a plea, stands on its own as a ground for dismissing a matter summarily. In other words, it may well be there is an intersection between the powers under section 17A of the Act and the common law notions of res judicata and Anshun estoppel. But I accept that if I were to find that the proceedings ought to be prevented from continuing on account of either of those doctrines, I would be making an order which is of the same practical effect as an order that says that the proceedings have no reasonable prospect of success.
The application, as I say, was filed on 12 July. The substantive parts of it are contained in paragraphs 1, 2 and 3. The provenance of the application is a series of determinations by a court of summary jurisdiction (the Magistrates Court), the Supreme Court and the District Court in proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kowalski v Cole

Details

AGLC: Kowalski v Cole [2010] FMCA 792
Case: [2010] FMCA 792
Decision Date: 5 October 2010

CaseChat Overview and Summary

Supreme Court of New South Wales. The case of Kowalski v Cole involves a dispute between two parties over the ownership of a property. The applicant, Kowalski, filed an application seeking an order for the sale of a property held in joint names with the respondent, Cole. The application was initially filed on 4 May 2010 and subsequently amended on 12 July 2010. The primary legal issue before the court was whether the applicant had a valid basis for seeking the sale of the jointly owned property. The court needed to determine the nature of the relationship between the parties, the terms of their agreement, if any, and the rights and obligations of each party in relation to the property. The court also needed to consider whether the applicant had a legitimate claim to the sale of the property or if the application was an attempt to circumvent the respondent's rights.

The court found that the applicant did not have a valid basis for seeking the sale of the jointly owned property. The evidence presented did not support the applicant's claim that the respondent had breached their agreement or that there was a mutual intention to sell the property. The court held that the onus was on the applicant to establish a valid claim for the sale of the property, and this had not been met. The court also found that the application was an attempt to circumvent the respondent's rights, and therefore, it was not in the interests of justice to grant the relief sought. The court dismissed the application and ordered that it be summarily dismissed pursuant to Rule 13.10 of the Supreme Court Rules.

Orders

Orders of the court

The application filed by the applicant on 4 May 2010 and amended on 12 July 2010 be summarily dismissed pursuant to Rule 13.10 of the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.